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Talha Ahsan is to be released and returned to the UK after a US judge ruled that 'Jihad' does not mean terrorism reports Peter Stauber

“That’s the door through which the police came when they took my brother”, says Hamja Ahsan, pointing to the far end of the room. We’re standing in the basement of Talha Ahsan’s home in Tooting, South London. Against the wall stands his bookshelf, unchanged since that day in July 2006. At the time, he was applying for a job as a librarian, and his collection of books testifies to his wide-ranging interests: his books include Teach Yourself Judaism, A History of the Quranic Text, collections of poetry as well as Toby Young’s How to Lose Friends and Alienate People and the rather random The World’s Best Light-Bulb Jokes.At the time of his arrest, he was reading a book he had borrowed from the library: Franz Kafka’s The Trial.

Talha Ahsan’s own Kafkaesque experience of the UK and US justice system, which largely consisted of waiting for his trial to actually happen, is finally at an end. He spent six years imprisoned without charge or prima facie evidence in the UK, before being extradited to the US in 2012 and detained in a supermax prison in Connecticut. Last year he and his co-defendant Babar Ahmad entered into a plea bargain, as is customary in the US justice system. Three weeks ago District Judge Janet C. Hall sentenced him to the eight-year term he had already served. He is expected return to his home in Tooting sometime in mid-August.

During the eight years of his imprisonment, a lot has been written about Talha. About his arrest and extradition. About the scantiness of the evidence. About the fact that the British government did not charge him. About the double standards the Home Office applied when blocking the extradition of computer hacker Gary McKinnon, but not Talha’s. About the morals – or absence thereof – of imprisoning a sufferer of Asperger’s syndrome in solitary confinement. And about the tremendous support he received from fellow writers, academics, and politicians.

For Hamja, 33, an eight-year struggle to get his older brother back home is now over. The sentence by the US judge did not surprise him, he says, but he is relieved. “The government’s case was just shoddy: it was like tabloid fear mongering.” An important moment came when Evan Kohlmann, one of the government’s key expert witnesses, was thrown out by the prosecution. Kohlmann is a frequent witness for the prosecution in terrorism cases, but his credentials are poor and his expertise in serious doubt. His “expert” report was torn to pieces by a witness for the defence, Marc Sageman, who criticises Kohlmann’s methodology, inaccuracies and one-sidedness. But ditching Kohlmann didn’t improve the prosecution’s case. “The government really were clutching at straws”, says Hamja.

Judge Janet C. Hall was not too impressed either. “There is no way to rationalise the sentences” that the prosecution had recommended, she said. When shown a video of Chechen militants committing war crimes, she pointed to the fact that the US also commits war crimes. She challenged the prosecution’s claim that Ahmad and Ahsan had violent intent, noting the defendants’ generosity and empathy. As Arun Kundnani and Jeanne Theoharis write, Hall thus broke with the“unthinking deference to the government” that US judges displayed after 9/11.

Crucially, judge Hall accepted the defendant’s interpretation of jihad: “In my view, jihad does not equal terrorism. In a perversion of what Islam teaches, terrorists have misappropriated the concept of jihad from its true meaning – struggle. But jihad is not what happened on 9/11.” These are not words that one hears often from a US judge in a terrorism case. With this statement, Hall essentially challenges the view of jihad that is prevalent both within the US government and its nemesis, Al-Qaida, but not among the majority of Muslims. She also resists the attempts by the prosecution to apply post-9/11 categories to the 1990s, when Al-Qaida was still a largely unknown group and jihad was associated with a defensive struggle in Bosnia and Chechnya.

To support their case, the defence team commissioned a report by Karen Armstrong, a leading religious scholar and commentator on contemporary religious affairs. She provides a history of the concept of jihad, pointing out that while in the West jihad is usually understood to mean simply “holy war”, in the Islamic world its significance is “much more nuanced. Its primary meaning is ‘effort’ or ‘struggle.’” In the Quran, Muslims are required to commit themselves to jihad on all fronts:“Muslims must speak out against injustice, alleviate the distress of the poor, acquire knowledge and educate the ummah, work hard to support their families, and, above all, live a good religious life.” As concerns armed struggle, Armstrong writes, violence is only permitted in self-defence. She notes that this idea finds an analogy in the concept of self-defence in civil law.

Armstrong then criticises the frequently heard argument that “because a convicted terrorist had access to a particular article or video that concerns the subject ofjihad (understood as “holy war” against foreign occupation), this article or video has been responsible for persuading the convicted person to commit attacks on Western civilians.” This analysis ignores the possibility that “non-state actors could use violence in a legal manner.” She points to the examples of Nobel Peace Laureates such as Martin Luther King and Nelson Mandela, who had previously been regarded as terrorists by their opponents.

In the 1990s, the wars in Bosnia and Chechnya made armed defensive struggle an urgent concern for Muslims around the world. As Talha’s lawyers demonstrated on the basis of several other expert reports, volunteering to fight against oppressive armies – the Serbs in Bosnia and the Russians in Chechnya – was seen by many British Muslims as a religious duty. This jihad had nothing to do with hostility against the West, and Talha Ahsan’s marginal involvement with the website Azzam.com, which disseminated news on Muslim conflicts, has to be seen against the backdrop of these wars. As an expert witness from the Quilliam Foundation writes, among Muslim activist circles in the 1990s it was not regarded as extremist to support Muslim causes in Bosnia, Kosovo or Chechnya. “On the contrary, such support was mainstream and regarded as legitimate resistance by oppressed freedom fighters, seen as very similar to the Afghan mujahedin fighters against the USSR.” Also, it wasn’t illegal under UK law at the time to undertake such a journey.

Considering the strong feelings that the wars in Bosnia and Chechnya had provoked within Muslim communities around the world, travelling to Afghanistan to receive training in combat was seen as a legitimate pursuit for devout Muslims, most of whom neither knew about Al-Qaida nor joined any other extremist group. When Talha Ahsan went to Afghanistan as a 19-year-old, he realised that he was entirely unsuited as a fighter and left the country without engaging in any combat or joining any group. The only person involved in Talha Ahsan’s case who did join Al-Qaida was not one of the defendants, but a key cooperating witness for the prosecution, who had been imprisoned for six years.

By accepting many of the defence’s arguments, Janet C. Hall departs from the islamophobic conflation of jihad and terrorism, and instead resorts to a strategy that is largely absent from US terrorism cases: the analysis of events in their historical setting, and the deployment of common sense. Whether the British Home Office is going to do the same remains to be seen. Hamja Ahsan does not know yet what will happen when his brother returns: if he will be charged with any offence, monitored under anti-terrorism laws – or finally left in peace.